Warrantless Searches of Cell Phones Legal in Califonia


The California Supreme Court as said that the warrantless search of a cell phone found on the person of the defendant at the time of arrest is not a violation of the defendant’s Fourth Amendment rights. The officer scrolled the messages folder and found “6 4 80”, which means 6 pills for $80, which was introduced as evidence subsequent to his arrest on charges of selling ecstasy.

The court analogized other cases where drugs, weapons and other evidence was in plain sight at the time of the arrest. I think the reasoning doesn’t stand. The mere presence of the phone, absence other facts, does not suggest that it was evidence of a crime.

What if the police know I use my laptop as a phone? Scratch that- what if I just have it with me. It’s “associated with my person” at the time of arrest. Can the police search it without a warrant?

What if my phone (or laptop or iPad) is networked through the cloud to my work and personal computers (Windows Phone 7 users listen up as this capability is built-in!). Can the police log onto my computers through my phone?

What if the phone or laptop is in the back seat? Can the police seize it pursuant to arrest as being “associated with my person”

Password protect those PDAs and smart phones! Encrypt them if you can! But the opinion is silent on this issue so protection even in those circumstances is not assured.

You can read the case here.

4 thoughts on “Warrantless Searches of Cell Phones Legal in Califonia

  1. I think there is a good argument to be made that the courts would not allow any sort of remotely accessed evidence, but as long as the information was on the phone then it’s fair game. I need to read the case, but even without a warrant they generally have to have a reason to look at the phone. The reason could be as “we wanted to contact a friend or relative to let them know we were impounding his car” or something to that effect.

    Now, I think the more interesting question is whether or they could force the defendant to reveal a password or lock to the phone. US v Boucher may shed some light on the subject but it is distinguished by the fact that 1) it was at he border where ones has a lower expectation of rights and 2) the government already had evidence as to what was on the computer they just needed further evidence to show the jury and decrypting the hard drive was necessary for that act.

    While phone based locks are technologically easy to bypass as they don’t actually encrypt the information on the phone, it certainly isn’t accessible to an officer in the field and could hardly be deemed in plain sight. Of course, this is my opinion and it will take years before we see enough court cases like this to reveal the state of the law.

    • Thanks for commenting.

      I think the language of the opinion is pretty clear that access to the phone’s contents is allowed when the police have taken possession of it incident to arrest. There does not need to be a specific reason for looking at the phone. You raise good points on how the case could be distinguished when discussing a cloud service model, but I think the court is on a slippery slope here. I’m not sure it’s a big leap to go from accessing a storage on the phone v. storage that is remote, but just as easily accessed. Given the cloud service model, data stored locally on the phone or remotely on a computer will be indistinguishable from data stored remotely. That’s the whole point, correct?

      Also, I’m not sure that being password protected makes a 4th amendment defense any stronger. If the rational for access is seizure incident to arrest, then whether there is a password wouldn’t make a difference. Obviously the counter argument is that there was an increased expectation of privacy given the password. This slope is slippery and we are already sliding. As you point out, it would be very easy for the police to bypass the password. I don’t think the police would be able to force disclosure of the password if it was encrypted for 5th Amendment reasons. I agree with your distinguishing of Boucher.

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